Lord Mansfield.--On the part of Sommersett, the case
which we gave notice should be decided this day, the
Court now proceeds to give its opinion. I shall recite the
return to the writ of Habeas Corpus, as the ground of our
determination; omitting only words of form. The captain
of the ship on board of which the negro was taken, makes
his return to the writ in terms signifying that there have
been, and still are, slaves to a great number in Africa; and
that the trade in them is authorized by the laws and opinions
of Virginia and Jamaica; that they are goods and
chattels; and, as such, saleable and sold. That James Sommersett
is a negro of Africa, and long before the return of
the king's writ was brought to be sold, and was sold to
Charles Steuart, esq. then in Jamaica, and has not been
manumitted since; that Mr. Steuart, having occasion to
transact business, came over hither, with an intention to
return; and brought Sommersett to attend and abide with
him, and to carry him back as soon as the business should
be transacted. That such intention has been, and still continues;
and that the negro did remain till the time of his
departure in the service of his master Mr. Steuart, and
quitted it without his consent; and thereupon, before the
return of the king's writ, the said Charles Steuart did commit
the slave on board the Anne and Mary, to safe custody,
to be kept till he should set sail, and then to be taken
with him to Jamaica, and there sold as a slave. And this is
the cause why he, captain Knowles, who was then and now
is, commander of the above vessel, then and now lying in
the river of Thames, did the said negro, committed to his
custody, detain; and on which he now renders him to the
orders of the Court. We pay all due attention to the opinion
of sir Philip Yorke, and lord chancellor Talbot,
whereby they pledged themselves to the British planters,
for all the legal consequences of slaves coming over to this
kingdom or being baptized, recognized by lord Hardwicke,
sitting as chancellor on the 19th of October, 1749,
that trover would lie: that a notion had prevailed, if a negro
came over, or became a Christian, he was emancipated,
but no ground in law: that he and lord Talbot,
when attorney and solicitor-general, were of opinion, that
no such claim for freedom was valid; that though the statute
of tenures had abolished villeins regardant to a manor,
yet he did not conceive but that a man might still become
a villein in gross, by confessing himself such in open court.
We are so well agreed, that we think there is no occasion
of having it argued (as I intimated an intention at first,)
before all the judges, as is usual, for obvious reasons, on a
return to a Habeas Corpus. The only question before us
is, whether the cause on the return is sufficient? If it is,
the negro must be remanded; if it is not, he must be discharged.
Accordingly, the return states, that the slave departed
and refused to serve; whereupon he was kept, to
be sold abroad. So high an act of dominion must be recognized
by the law of the country where it is used. The
power of a master over his slave has been extremely different,
in different countries. The state of slavery is of
such a nature, that it is incapable of being introduced on
any reasons, moral or political, but only by positive law,
which preserves its force long after the reasons, occasion,
and time itself from whence it was created, is erased from
memory. It is so odious, that nothing can be suffered to
support it, but positive law. Whatever inconveniences,
therefore, may follow from the decision, I cannot say this
case is allowed or approved by the law of England; and
therefore the black must be discharged.